Opinion
WR-95,797-02
07-31-2024
EX PARTE SHAWN PAUL POORE, Applicant
Do not publish
On Application for a writ of Habeas Corpus Cause No. 38,888A in the 66th District Court from Hill County
ORDER
PER CURIAM.
Applicant pleaded no contest to unlawful possession of a firearm by a felon and was sentenced to 35 years' imprisonment. Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant contends that his plea was involuntary because trial counsel failed to object to the use of a prior conviction for enhancement. The record before this Court reflects that Applicant was charged by indictment with a third-degree felony, enhanced by one prior conviction. However, the plea hearing transcript and the written judgment reflect that Applicant pleaded true to two prior convictions alleged for enhancement and the trial court found the enhancements to be true.
Applicant's North Dakota conviction could not be alleged both as an element of the instant offense and for enhancement. Hernandez v. State, 929 S.W.2d 11, 13 (Tex. Crim. App. 1996); Mc Williams v. State, 782 S.W.2d 871, 875 (Tex. Crim. App. 1990). Applicant's sentence of 35 years exceeded the punishment range for a second-degree felony. See Tex. Pen. Code §§ 12.42(a). The record does not establish whether defense counsel made a decision to waive error that fell within an objective standard of reasonableness; whether counsel's advice to Applicant to plead true to this enhancement was within the range of competence demanded of attorneys in criminal cases; and if not, whether there is a reasonable probability that, but for this error, Applicant would not have pleaded guilty and would have insisted on going to trial. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); Ex parte Barnaby, 475 S.W.3d 316, 324 (Tex. Crim. App. 2015); cf. Ex parte Parrott, 396 S.W.3d 531, 535 (Tex. Crim. App. 2013).
Applicant has alleged facts that, if true, might entitle him to relief. Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant's claim. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See Tex. Code Crim. Proc. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall make findings of fact and conclusions of law as to whether trial counsel's performance was deficient and Applicant would have received a lesser sentence or insisted on a trial but for counsel's alleged deficient performance. The trial court shall make findings of fact and conclusions of law as to whether Applicant's plea was knowing and voluntary and whether laches is applicable to the claim. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claim.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.